A group of Dongaria and Kutia Kondh leaders from Niyamgiri area on Wednesday sought the intervention of Governor S.C. Jamir to save them from the ‘mischief’ that the ST and SC Department of the State was playing to help out Vedanta by diluting the apex court’s order.

Stating that they had been betrayed by the ST and SC Department, Kumuti Majhi and Lada Sikaka of Niyamgiri Surakhya Samiti urged the Governor that as the custodian of rights of all tribal communities in the State he should intervene and instruct the Naveen Patnaik government to quash the State ST and SC department’s order to conduct gram sabhas only in 12 villages.

The tribal leaders further requested the Governor to direct the State government to conduct gram sabhas in all the villages in Niyamgiri to ascertain claims and rights of their communities.

The government should be instructed to stop fear and intimidation tactics used by armed security forces in Niyamgiri hills to help Vedanta, which was unethical and undemocratic, they said. They further demanded that the State government should create a positive atmosphere so that their people will come out happily and participate in gram sabhas of all the villages and express free and frank views regarding their rights and claims.

The tribal leaders also urged the Governor to instruct the State government to stop all Vedanta activities in the area till the gram sabhas were conducted in a fair way in all the villages of Niyamgiri.

They told the Governor that the Niyamgiri mountain and hillocks close to their villages were sacred, as they were considered as the abode of their god, the Niyamraja. They were shocked when some people, without any knowledge, were talking to them about what constituted Niyamraja, they said. They said that the Niyamgiri mountain region and the hillocks were sacred and the centre of their identity and culture.

‘Instruct the government to quash the State ST and SC department’s order to conduct gram sabhas only in 12 villages’

“The Apex Court verdict has been clearly ignored by the ST and SC Department of the State government as there has been an arbitrary decision while selecting 12 villages for conducting Gram Sabhas for which no convincing reason has been mentioned,” Mr. Samantra said.

He also charged that the State was trying to spread reign of terror in Niyamgiri Hill range before conduct of gram sabhas.

“Since a fake combing operation is going on in the area by security forces with the help and support of Vedanta, an atmosphere of fear and intimidation is prevailing over there which may badly affect the conduct of Gram Sabhas.

A couple of days back security forces allegedly fired at a group of young tribal children who were playing in the hills and one was reportedly killed. If such a situation continues no Gram Sabhas could be conducted in a fair way,” Mr. Samantra further alleged.

He urged the Chief Secretary to take urgent steps so that Gram Sabhas would be conducted in all affected places, and just not the ones prescribed by the administration.

The petitioner also requested the government to involve him in all the processes leading to conduct of gram sabhas as per Apex Court order.

Recently, Union Ministry of Tribal Affairs had told the State government that selection of 12 villagers for conducting gram sabhas was not in accordance of Supreme Court order.

MoTA Secretary Vibha Puri Das in a letter said the ministry was in receipt of copies of several claims under Forest Rights Act for various rights including religious and cultural rights claimed over Niyamgiri forests and sacred areas from villages over and above the 12 villages selected by the State Government.

The State Government has requested Chief Justice of the Orissa High Court to nominate a judicial officer of the rank of district judge as observer for the proposed gram sabhas to be conducted for deciding grant of mining lease to Vedanta Group for bauxite mining.

In an official communique to the Registrar General of the High Court, Scheduled Tribes and Scheduled Castes Development Secretary Santosh Sarangi said the Supreme Court has directed that the proceedings of the grama sabha should be attended by a judicial officer of the rank of district judge who will sign the minutes of the proceedings.

In its April 18 judgment, the Supreme Court said grant of mining lease to Vedanta Group for bauxite mining in Niyamgiri hills will be subjected to clearance by gram sabhas on the cultural and religious claims of the tribes and forest-dwellers of Rayagada and Kalahandi districts.

The apex court has directed the State Government to place issues concerning individual, community, cultural and religious claims of Scheduled Tribes (STs) and Traditional Forest Dwellers (TFDs) before the gram sabha which would decide the same in three months.

“The judicial officer shall have to sign the minutes of the proceedings, certifying that the proceedings of the gram sabha took place independently and completely uninfluenced either by the project proponents or the Central Government or the State Government,” a three-member bench comprising Justices Aftab Alam, KS Radhakrishnan and Ranjan Gogoi said.

The Ministry of Tribal Affairs (MoTA) had recently asked the State Government to ensure that the entire proceedings are held in an independent manner, uninfluenced by any vested interests and without coercion.

Governor SC Jamir recently summoned three senior officers of the State Government to apprise him of the steps taken on the directive of the Supreme Court.

Principal Secretary, Steel and Mines Rajesh Verma, Scheduled Tribes and Scheduled Castes Development Secretary Santosh Sarangi and Chairman and Managing Director of Odisha Mining Corporation Saswata Mishra reportedly told the Governor that instructions have been issued to district collectors of Kalahandi and Rayagada for conducting gram sabhas in 12 villages as per the apex court guidelines.

291 cases of serious adverse events reported

Drug trials on humans in Rajasthan over the last eight years have claimed 95 lives, while 291 persons experienced serious adverse events, according to the State government’s latest deposition before the Supreme Court in an ongoing public interest litigation.

While informing the apex court of the figures, the Rajasthan government has sought to be made part of the overall monitoring and regulatory framework regarding clinical trials in order to protect the health of its citizens, deal with rogue trials and expedite the compensation process.

The 95 deaths include those caused due to the trials, besides deaths due to the natural history of the disease and other unrelated health events.

Four cases of death were deemed fit for compensation by sponsor companies out of which two had been compensated, while the process of compensating the other two was on.

This information was revealed in an affidavit submitted earlier this year by Rajasthan Chief Secretary C.K.Matthew to the Supreme Court, hearing a public interest litigation petition. A committee appointed by the state government came up with these figures after collecting data from 60 principal investigators regarding 213 clinical trials, conducted between 2005-2012.

However, the total number of deaths could be much higher as a total of 326 trials were conducted in Rajasthan during this period.

Some of the drugs for which trials were conducted include Talactoferril, Kremezin, Aliskirel, SU011248 (code name), Prasugrel and Clopidogrel.

In line with responses from other State governments in the case, the Rajasthan government too, has argued for higher powers to the States in the overall monitoring and regulatory framework regarding clinical trials.

“Certainly, the State government needs to be part of the whole process or else how are we to know what steps are to be taken [to deal with rogue trials],” Mr. Matthew told The Hindu .

In its deposition, a copy of which is with The Hindu , the Rajasthan government argued that while the Drugs and Cosmetic Act 1945 was a Central legislation, the State government was primarily responsible for the health of its citizens.

“The data would clearly reveal that sometimes clinical trials have significant adverse impact on the health of patients…existing rules need to be amended accordingly, especially with regard to immediate care for persons suffering SAEs and…with respect to compensation [in case of mortality],” the State government has argued.

It has also called for the strengthening of the existing framework “with sufficient safeguards…with penalties as well as adequate compensation”.

The government argued in favour of an online monitoring system for persons undergoing trials and a proper accreditation system for the selection of principal investigators in which the State government should have a role to play.

Since almost all Ethics Committees overseeing the propriety of the trial process are in-house bodies of sponsor hospitals of which Principal Investigators are also members, the government has called for Ethics Committees to be detached from trial sponsoring sites/institutes.

According to information submitted to the court by the Union Health Secretary in the case, a total of 2,644 deaths and 11,972 SAEs were reported during clinical trials in India between January 2005 and June 2012.

State government seeks higher powers in overall monitoring, regulatory framework

Last month, 65 representatives of panchayati raj institutions in Malkangiri, Odisha, resigned en masse protesting against the apathy of the State government. All Adivasis, their principal demands have been the extension of an irrigation canal, road repair, and the supply of drinking water to villages. They had been making representations to the State Government and meeting officials but to no avail. Even after they resigned, Bhubaneswar has hardly taken note of the grave constitutional and governance crisis this has caused. What would the reaction have been had this happened in say Jammu and Kashmir?

Panchayat raj institutions are integral to our constitutional edifice. No minister or bureaucrat from Bhubaneswar has decided to visit the district to establish an interface with the elected adivasi leaders. What can be more insensitive?

In early 2009, the Central Government decided on a significant initiative to deal with rising Maoist violence. Here, the deployment of Central forces was increased and States given support to add to their capability in coping with Maoist violence. The expectation was that a grid pattern of deployment of Central forces, supported by special forces with deep penetration capability, would facilitate developmental and governance initiatives. Affected districts were provided assistance under the Integrated Action Plan (IAP), which was one more method of gap-funding after the Backward Regions Grant Fund (BRFG). Besides, the districts were given additional funds under various Centrally-sponsored schemes. The strategy has worked wherever State governments have been able to benefit from Central assistance. Where the State administration is disinterested, the Central effort has yielded limited benefits.

Neither money nor security forces individually or together can win the hearts and minds of people, if money remains unspent and all that people see are large numbers of heavily armed personnel. This is precisely what happened to Malkangiri four years later. The State Government has been unable to create capacity or improve governance. Development schemes can hardly be implemented. Ministers and bureaucrats are unwilling to visit the district to personally take charge, review implementation or assuage the frustration of the Adivasis. There is a case for a rethink on our strategy to deal with what the Prime Minister has termed the biggest internal security threat to India.

Underutilised funds

During a recent visit to Malkangiri I met the Adivasi leaders. They were simple and straightforward in talking about the issues that affected them and expressed a great sense of helplessness at having been cheated by the government. They no longer trust it. Ironically, Malkangiri is among the top three Naxal-affected districts of the country with 60 per cent Adivasis and 81 per cent people below poverty line. The district gets generous funds under Central schemes as well as under BRGF and IAP yet fares poorly on all development indicators besides reporting extremely poor utilisation of Central funds. Malkangiri’s misery is being perpetuated by the insensitivity, inaction and neglect of a callous State government. Unfortunately, civil society has little time for the Adivasis. Innocent children are dying of diseases, youth are unemployed, women are vulnerable, farmers do not have access to irrigation and there is an atmosphere of bedlam and unprecedented institutional decay.

Poor infrastructure

Under the Mahatma Gandhi National Rural Employment Guarantee Scheme, the district has received Rs.35.39 crore till February this year, but only Rs.14.78 crore has been spent. Out of the 3,024 units sanctioned under the Indira Awaas Yojana housing scheme, about 30 houses have been built. Under the IAP, the district has received Rs.85 crore out of which Rs.30 crore remains unspent. Malkangiri has as many as 36 health centres apart from the district headquarters hospital. But they remain non-functional as at least 40 posts of doctors, including specialists, are vacant against the sanctioned strength of 87.

Roads are in bad shape and people have been repeatedly blocking them to voice their anger, but to no avail. Road projects worth Rs.460 crore, of the Public Works Department, and Rs.630 crore under the Pradhan Mantri Gram Sadak Yojana (PMGSY) are yet to take off. Only 35 per cent of the funds under PMGSY have been used. Ironically, the Chief Minister holds the Works portfolio, which is supposed to maintain all major roads and look after the Water Resources department. Political executives from Bhubaneswar hardly ever visit the district. When they do, they never spend a night even at the fortified district headquarters. When Ministers, secretaries and bureaucrats are unwilling to visit the district and senior police officers move around in helicopters provided by the Central Government for security reasons, we cannot blame the district officials for their unwillingness to visit the interiors, particularly after the kidnapping of two Collectors from the Bastar region. The State Government has failed to build a bridge across the Gurupriya river that separates the cut-off areas from the mainland of Malkangiri district. The cut-off areas are essentially the eight gram panchayats of Kudumulugumma block separated from the mainland district by the Balimela reservoir constructed in 1977. The dam project separated some 33,400 people in 151 villages from the Odisha mainland though they are connected on the other side to Visakhapatnam district in Andhra Pradesh.

Rights violations

In 2001, the Collector and Superintendent of Police “ran away” from the district. On the Chief Minister’s request, the Central Government sent four battalions of Central forces as well as a helicopter. Money has also been provided for the modernisation of the police force. The State Government meets the entire expenditure on fighting Naxalites under the Security Related Expenditure (SRE) Scheme of the Central Government. To this, the Central Government has now sanctioned two engineer battalions to attend to road work in areas where contractors are not taking up work. Instead of providing security cover, the security forces have become the only government agency present or visible. There are repeated allegations of human rights violations. This when the purpose of security cover was to implement development work and sort out governance issues.

The Centre has poured in funds and deployed huge numbers of security personnel. But, what does one do if the State administration fails to implement and tackle governance issues? What if Ministers and bureaucrats do not carry out routine reviews and inspections? Since the kidnapping of Collector Vineel Krishna, governance has more or less collapsed. No development has taken place, fuelling the current crisis that has forced elected Adivasi leaders to resign.

The Adivasis are simple people, who have for long tolerated the highhandedness of the administrators and the police. Now, they have been left to face armed Maoists.

To me, this is a grave constitutional crisis and all efforts must be made to restore grass-roots democracy here.

(Niranjan Patnaik is president of the Odisha Pradesh Congress Committee.)

Panchayati raj representatives in the Naxal-affected district have resigned

en masse to protest the apathy to their development needs, but the Odisha government remains unmoved

The Supreme Court order has left it to the villagers to decide the fate of the Vedanta project, and the call revolves on whether the venture would affect their religious and other rights.

NEW DELHI: The villages of Dongriya Kondh tribals around Odisha‘s Niyamgiri hills are likely to simmer again as the Centre and the state government along with civil society groups are planning to converge on the site for the proposed Vedanta bauxite mine.The Supreme Court order has left it to the villagers to decide the fate of the Vedanta project, and the call revolves on whether the venture would affect their religious and other rights.

The tribal affairs ministry has moved with alacrity to order the Odisha government to ensure the tribals can vote freely. It has asked the Naveen Patnaikgovernment to ensure all villages, which express their rights in the contentious zone, are identified and given the opportunity to decide the project’s fate.

Civil society groups too have begun to mobilize their own resources – both experts and manpower – to make sure there are third party observers at the site, which has been turned into a fortified zone by the state government ever since the row erupted.

Battle-lines have been drawn among the Centre, Odisha government and corporate interests over the high-profile project. The interpretation of the rules and the court order is underway in various wings of both central and state government. One section has begun pushing for an interpretation of the apex court order that would reduce the number of tribal village councils that would get to decide the venture’s fate.

Another set within the government has tried to interpret the law and the SC order to suggest that the tribal gram sabha can only put forth claims about their rights – religious or otherwise – but they would have to be settled by higher echelons of power, or the state bureaucracy.

Any curb on gram sabha powers through interpretation of the law or restricting the number of gram sabhas, who would get to vote, is perceived as a major challenge in the backdrop of heavy state ‘bandobast’ and the judicial monitoring that the apex court has ordered.

The unusual promptness and enthusiasm shown by the tribal affairs ministry in this case has as much to do with the apex court’s verdict as the ministry’s need to be seen aligned with the drift of the Congress leadership on the case. After it had come out standing by the PMO in favour of dilution of the Forest Rights Act (FRA) — that the environment ministry had used to step back in favour of partial dilution of tribal rights over forests — the tribal affairs ministry is bound to pounce on this one single case to underscore its credentials.

Environment minister Jayanthi Natarajan had scored brownie points with the Congress leadership by deftly handling the case, using the innovative ploy of religious rights to defend the UPA’s decision to block Vedanta’s mining rather than the norms that empower tribal gram sabhas to reject projects that impinge on their forests. Using the latter defense would have spelt trouble for the government, which has allowed several other projects on forestland without seeking similar gram sabha clearances.

The occasion of Dongriya Kondh tribals voting has presented tribal affairs minister Kishore Chandra Deo the opportunity to reassert his primacy over the FRA — a pro-tribal promise by the UPA — that he had earlier led from front in the party to get through Parliament.

A bench headed by Justice R M Lodha asked the Centre to consider all the objections raised by various parties pertaining to the mega steel plant and take a decision.

The court was hearing cross appeals filed by the state government and a mine and mineral company challenging the Orissa high court’s order on the issue of iron ore mines.

The state government of Orissa and Geomin Minerals & Marketing Limited had challenged the orders of the Orissa high court which had quashed the notification issuing iron ore mining in over 2,500 hectares in the Khandadhar hills in Sundergarh district to POSCO.

The high court, on July 14, 2010 on the petition of Geomin Minerals, had set aside the state government’s decision.

Geomin Minerals had contended before the high court that it had applied for the prospective licence for Khandadhar iron ore mines much before POSCO.

The High Court had set aside the notification issued by state government in 1962 reserving all mineral bearing land for exploitation within Orissa and take a fresh decision on it.

The high court had further said that all mineral bearing land reserved by the state government prior to 1987, without the approval of the central government would not be deemed to have never been reserved.

The Orissa government, which had moved the apex court, on October 29, 2010 on this issue, had contended that the high court could not have quashed the state government’s grant of licence to POSCO as it was under section 11 (5) of Mines And Minerals (Development And Regulation) Act, 1957.

The Orissa government had further contended that Section 11 (5) gives power to the state government to “grant a reconnaissance permit, prospecting license or mining lease, as the case may be, to an applicant whose application was received later in preference to an application whose application was received earlier”.

The state government in January 2009 had recommended POSCO to the central government for granting prospective licence for Khandadhar iron ore reserves.

This was challenged by Geomin and later 16 other firms who have also applied for mining leases also intervened.

Geomin, in its petition, had submitted before the apex court that the high court “does not take into account the pleading made by it” and “has traversed beyond the pleadings and prayer made by it”.

BHOPAL: Committee set for reviewing the cases ofundertrials languishing in Chhattisgarhjails, has so far recommended the state government that it should not oppose the bail plea of 63Naxalities who have been in jail for more than two years.

However, the committee is not aware whether any of these 63 naxalities were released or not. The committee headed by former chief secretary of state Nirmala Buch was constituted as a part of deal between Naxalities and state government against the release of abducted Sukma collector Alex Paul Menon, in May 2012.

The first meeting of the committee was held on May 3 last year, the day when the abducted collector was released by Naxalities, the committee’s sixth meeting was held at Bhopal on Monday.

“It is a standing committee and its purpose is to review the cases of undertrials who are in the jails for 2 years or more. So far we have reviewed 235 such cases and have recommended that government should not oppose the bail pleas of 110 such undertrials. Out of these, 110 a total of 63 were naxalities,” chairperson of the committee Nirmala Buch told TOI.

“176 cases were reviewed till the fifth meeting of the committee, out of which we recommended the government for not opposing the bail pleas of 71 after the review”, she said. “11 out of the 71 got bails, 10 were acquitted, 32 bail applications were not opposed by government but were rejected by courts,” she said.

“The rest 14 undertrials didn’t apply for bail in court,” Buch said.

Now, after the sixth meeting where we have reviewed 59 cases, we are recommending the government for not opposing the bail pleas of 39 such under trials which includes 21 naxalities, she added.

In all there are around 990 undertrials in Chhattisgarh jails who have been in captivity for two years or more years. We will review the next 100 cases in the meeting which is scheduled in July this year, Buch said.

One of the most disastrous consequences of the strife in the tribal areas of central India is that thousands of adivasi men and women remain imprisoned as under-trials, often many years after being arrested, accused of ‘Naxalite/ Maoist’ offences.

The facts speak for themselves.

In Chhattisgarh, over two thousand adivasis are currently in jail, charged with ‘Naxalite/Maoist’ offences. Many have been imprisoned for over two years without trial. In Jharkhand, an even larger number of adivasis, possibly in excess of five thousand, remain imprisoned as under-trials. The situation is similar in many other states of central and eastern India currently affected by armed conflict between the government and adivasi-linked militant movements, namely Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Odisha and West Bengal. The adivasi undertrial population may run into thousands in each of the states. Assessing the true scale of the problem is inherently difficult, given that none of the police or jail administrations are making comprehensive figures public, even after RTI requests have been filed by concerned citizens. This opacity adds to the injustice.

In each of these states, the adivasi under-trials, and particularly those arrested under special security statutes, face grave common handicaps that obstruct their Constitutional right to a fair, speedy trial, to justice.

One, language barriers. The vast majority of adivasi under-trials speak only adivasi languages, such as Gondi and Halbi. However, few if any courts have official interpreters/translators. This leaves the adivasis unable to communicate directly with the Officers of the Court or otherwise effectively make their case.

Two, the failure, in case after case, for evidentiary material, such as captured arms or explosives, to be promptly submitted in court by the security forces when they first produce the detainees before the Magistrate, as the Magistrate can statutorily direct the security forces to do when they level such serious charges. In the absence of prima facie proof, the grave risk of injustice being done to innocent adivasis is self-evident.

Three, procedural barriers relating to ‘Naxalite/Maoist’ and other security offences. Being charged with such offences, the under-trials are not produced in the courts for lengthy periods. Owing to this, the trial does not proceed for years together.

Four, other procedural barriers. Since under-trials charged with ‘Naxalite/Maoist’ offences are only held in Central Jails, many of them of them are transferred to jails at a great distance from their homes and families. In Chhattisgarh, for instance, nearly one hundred adivasi under-trials from Bastar have been transferred to Durg or Raipur Central Jails, a distance of over 300 kilometers. The great distance, coupled with the poverty of most adivasis, means that families are unable to regularly visit them or provide them with vital emotional support.

Five, the lack of proper legal defence. Lawyers who visit ‘Naxal/Maoist’ under-trials in Chhattisgarh are photographed by the authorities and their information listed in a separate register, making lawyers reluctant to visit their clients. In any event, many of the adivasi under-trials are dependent on legal-aid lawyers who rarely go to meet the client or seek instructions regarding the case. Often lawyers are careless in their conduct of cases and are amenable to pressures from the police or prosecution.

In addition to the humanitarian imperative, the prolonged failure to provide speedy and impartial justice to these thousands of adivasi under-trials is damaging the prospects for peace in India’s heartland – by leading adivasis to feel that the Indian government does not treat them as full citizens and by intensifying their generalised sense of alienation. It is telling that in the widely publicised “Collector abduction” incidents of Chhattisgarh and Odisha, one of the major demands raised by the insurgents was speedy and fair trial for these thousands of jailed adivasis, accused of being Naxalites/Maoists. Yet, virtually none of the efforts belatedly agreed to by the state governments – such as the ‘High-powered Committee for review of the cases of Adivasiundertrials in Chhattisgarh’, set up in mid-2012 under the aegis of Nirmala Buch, the former top IAS officer – have come to fruition or been acted on to any degree by the concerned governments.

More than anything else, the failure to ensure justice for the adivasis is a grave blot on India’s human rights record. Not only are we as a nation committed to democracy and human rights, but our Constitution provides extensive safeguards and rights to the adivasis that are being violated by not ensuring fair and speedy trials for these thousands of adivasi under-trials.

On every count – whether humanitarian or strategic – it is imperative that this prolonged failure to assure our country’s adivasis of speedy, impartial justice be set right immediately.

Justice is in everyone’s interest.

Hence, we the undersigned, a large group of concerned Indians – including adivasi leaders, jurists and lawyers, and public intellectuals – urge the Union Government, the concerned State Governments, and the Supreme Court to undertake to appoint a special Commission of eminent jurists to oversee dedicated fast-track courts that hear these cases speedily and impartially.

Former Chief Justice of India, JS Verma as Chairperson National Human Rights Commission in his Preliminary Report, April 1, 2002:-

“….9. The Commission would like to observe that the tragic events that have occurred have serious implications for the country as a whole, affecting both its sense of self-esteem and the esteem in which it is held in the comity of nations. Grave questions arise of fidelity to the Constitution and to treaty obligations. There are obvious implications in respect of the protection of civil and political rights, as well as of economic, social and cultural rights in the State of Gujarat as also the country more widely; there are implications for trade, investment, tourism and employment. Not without reason have both the President and the Prime Minister of the country expressed their deep anguish at what has occurred, describing the events as a matter of national shame. But most of all, the recent events have resulted in the violation of the Fundamental Rights to life, liberty, equality and the dignity of citizens of India as guaranteed in the Constitution. And that, above all, is the reason for the continuing concern of the Commission.
*
The term ‘human rights’ is defined to mean the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India (Section 2(1)(d)), and the International Covenants are defined as the “International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December 1966” (Section 2(1)(f)).
(ii) It is therefore in the light of this Statute that the Commission must examine whether violations of human rights were committed, or were abetted, or resulted from negligence in the prevention of such violation. It must also examine whether the acts that occurred infringed the rights guaranteed by the Constitution or those that were embodied in the two great International Covenants cited above.
(iii) The Commission would like to observe at this stage that it is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.
(iv) The first question that arises therefore is whether the State has discharged its responsibilities appropriately in accordance with the above. It has been stated in the Report of the State Government that the attack on kar sevaks in Godhra occurred in the absence of “specific information about the return of kar sevaks from Ayodhya” (p. 12 of the Report). It is also asserted that while there were intelligence inputs pertaining to the movement of kar sevaks to Ayodhya between 10-15 March 2002, there were no such in-puts concerning their return either from the State Intelligence Branch or the Central Intelligence Agencies (p. 5) and that the “only message” about the return of kar sevaks, provided by the Uttar Pradesh police, was received in Gujarat on 28 February 2002 i.e., after the tragic incident of 27 February 2002 and even that did not relate to a possible attack on the Sabarmati Express.
(v) The Commission is deeply concerned to be informed of this. It would appear to constitute an extraordinary lack of appreciation of the potential dangers of the situation, both by the Central and State intelligence agencies. This is the more so given the history of communal violence in Gujarat. The Report of the State Government itself states:
“The State of Gujarat has a long history of communal riots. Major riots have been occurring periodically in the State since 1969. Two Commissions of Inquiry viz., the Jagmohan Reddy Commission of Inquiry, 1969, and the Dave Commission of Inquiry, 1985, were constituted to go into the widespread communal violence that erupted in the State from time to time. Subsequently, major communal incidents all over the State have taken place in 1990 and in 1992-93 following the Babri Masjid episode. In fact, between 1970 and 2002, Gujarat has witnessed 443 major communal incidents. Even minor altercations, over trivial matters like kite flying have led to communal violence.” (p. 127).
The Report adds that the Godhra incident occurred at a time when the environment was already surcharged due to developments in Ayodhya and related events (also p. 127).
Indeed, it has been reported to the Commission that, in intelligence parlance, several places of the State have been classified as communally sensitive or hyper-sensitive and that, in many cities of the State, including Ahmedabad, Vadodara and Godhra, members of both the majority and minority communities are constantly in a state of preparedness to face the perceived danger of communal violence. In such circumstances, the police are reported to be normally well prepared to handle such dangers and it is reported to be standard practice to alert police stations down the line when sensitive situations are likely to develop.
(vi) Given the above, the Commission is constrained to observe that a serious failure of intelligence and action by the State Government marked the events leading to the Godhra tragedy and the subsequent deaths and destruction that occurred. On the face of it, in the light of the history of communal violence in Gujarat, recalled in the Report of the State Government itself, the question must arise whether the principle of ‘res ipsa loquitur’ (‘the affair speaking for itself’) should not apply in this case in assessing the degree of State responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat. The Commission accordingly requests the response of the Central and State Governments on this matter, it being the primary and inescapable responsibility of the State to protect such rights and to be responsible for the acts not only of its own agents, but also for the acts of non-State players within its jurisdiction and any inaction that may cause or facilitate the violation of human rights. Unless rebutted by the State Government, the adverse inference arising against it would render it accountable. The burden is therefore now on the State Government to rebut this presumption.
(vii) An ancilliary question that arises is whether there was adequate anticipation in regard to the measures to be taken, and whether these measures were indeed taken, to ensure that the tragic events in Godhra would not occur and would not lead to serious repercussions elsewhere. The Commission has noted that many instances are recorded in the Report of prompt and courageous action by District Collectors, Commissioners and Superintendents of Police and other officers to control the violence and to deal with its consequences through appropriate preventive measures and, thereafter, through rescue, relief and rehabilitation measures. The Commission cannot but note, however, that the Report itself reveals that while some communally-prone districts succeeded in controlling the violence, other districts – sometimes less prone to such violence – succumbed to it. In the same vein, the Report further indicates that while the factors underlining the danger of communal violence spreading were common to all districts, and that, “in the wake of the call for the ‘Gujarat Bandh’ and the possible fall-out of the Godhra incident, the State Government took all possible precautions” (p. 128), some districts withstood the dangers far more firmly than did others. Such a development clearly points to local factors and players overwhelming the district officers in certain instances, but not in others. Given the widespread reports and allegations of groups of well-organized persons, armed with mobile telephones and addresses, singling out certain homes and properties for death and destruction in certain districts – sometimes within view of police stations and personnel – the further question arises as to what the factors were, and who the players were in the situations that went out of control. The Commission requests the comments of the State Government on these matters.
(viii) The Commission has noted that while the Report states that the Godhra incident was “premeditated” (p. 5), the Report does not clarify as to who precisely was responsible for this incident. Considering its gruesome nature and catastrophic consequences, the team of the Commission that visited Godhra on 22 March 2002 was concerned to note from the comments of the Special IGP, CID Crime that while two cases had been registered, they were being investigated by an SDPO of the Western Railway and that no major progress had been made until then. In the light of fact that numerous allegations have been made both in the media and to the team of the Commission to the effect that FIRs in various instances were being distorted or poorly recorded, and that senior political personalities were seeking to ‘influence’ the working of police stations by their presence within them, the Commission is constrained to observe that there is a widespread lack of faith in the integrity of the investigating process and the ability of those conducting investigations. The Commission notes, for instance, that in Ahmedabad, in most cases, looting was “reported in well-to-do localities by relatively rich people” (p. 130). Yet the Report does not identify who these persons were. The conclusion cannot but be drawn that there is need for greater transparency and integrity to investigate the instances of death and destruction appropriately and to instil confidence in the public mind.
(ix) The Report takes the view that “the major incidents of violence were contained within the first 72 hours.” It asserts, however, that “on account of widespread reporting both in the visual as well as the electronic media, incidents of violence on a large-scale started occurring in Ahmedabad, Baroda cities and some towns of Panchmahals, Sabarkantha, Mehsana, etc” in spite of “all possible precautions having been taken” (p. 128-129). The Report also adds that various comments attributed to the Chief Minister and Commissioner of Police, Ahmedabad, among others, were torn out of context by the media, or entirely without foundation.
(x) As indicated earlier in these Prceedings, the Commission considers it would be naïve for it to subscribe to the view that the situation was brought under control within the first 72 hours. Violence continues in Gujarat as of the time of writing these Proceedings. There was a pervasive sense of insecurity prevailing in the State at the time of the team’s visit to Gujarat. This was most acute among the victims of the successive tragedies, but it extended to all segments of society, including to two Judges of the High Court of Gujarat, one sitting and the other retired who were compelled to leave their own homes because of the vitiated atmosphere. There could be no clearer evidence of the failure to control the situation.
(xi) The Commission has, however, taken note of the views of the State Government in respect of the media. The Commission firmly believes that it is essential to uphold the Right to Freedom of Speech and Expression articulated in Article 19(1)(a) of the Constitution, which finds comparable provision in Article 19 of the Universal Declaration of Human Rights, 1948 and Article 19 of the International Covenant on Civil and Political Rights, 1966. It is therefore clearly in favour of a courageous and investigative role for the media. At the same time, the Commission is of the view that there is need for all concerned to reflect further on possible guidelines that the media should adopt, on a ‘self-policing’ basis, to govern its conduct in volatile situations, including those of inter-communal violence, with a view to ensuring that passions are not inflamed and further violence perpetrated. It has to be noted that the right under Article 19(1)(a) is subject to reasonable restrictions under Article 19(2) of the Constitution.
(xii) The Commission has noted the contents of the Report on two matters that raised serious questions of discriminatory treatment and led to most adverse comment both within the country and abroad. The first related to the announcement of Rs. 2 lakhs as compensation to the next-of-kin of those who perished in the attack on the Sabarmati Express, and of Rs. 1 lakh for those who died in the subsequent violence. The second related to the application of POTO to the first incident, but not to those involved in the subsequent violence. On the question of compensation, the Commission has noted from the Report that Rs. 1 lakh will be paid in all instances, “thus establishing parity.” It has also noted that, according to the Report, this decision was taken on 9 March 2002, after a letter was received by the Chief Minister, “on behalf of the kar sevaks,” saying “that they would welcome the financial help of Rs. 1 lakh instead of Rs. 2 lakhs to the bereaved families of Godhra massacre” (see p. 115). This decision, in the view of the Commission, should have been taken on the initiative of the Government itself, as the issue raised impinged seriously on the provisions of the Constitution contained in Articles 14 and 15, dealing respectively with equality before the law and equal protection of the laws within the territory of India, and the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The Commission has also noted the contents of the Report which state that “No guidelines were given by the Home Department regarding the type of cases in which POTO should or should not be used” and that, subsequent to the initial decision to apply POTO in respect of individual cases in Godhra, the Government received legal advice to defer “the applicability of POTO till the investigation is completed” (pp. 66-67). The Commission intends to monitor this matter further, POTO having since been enacted as a law.
(xiii) The Commission has taken good note of the “Rescue, Relief and Rehabilitation Measures” undertaken by the State Government. In many instances, strenuous efforts have been made by Collectors and other district officers, often acting on their own initiative. The Commission was informed, however, during the course of its visit, that many of the largest camps, including Shah-e-Alam in Ahmedabad, had not received visits at a high political or administrative level till the visit of the Chairperson of this Commission. This was viewed by the inmates as being indicative of a deeper malaise, that was discriminatory in origin and character. Unfortunately, too, numerous complaints were received by the team of the Commission regarding the lack of facilities in the camps. The Commission has noted the range of activities and measures taken by the State Government to pursue the relief and rehabilitation of those who have suffered. It appreciates the positive steps that have been taken and commends those officials and NGOs that have worked to ameliorate the suffering of the victims. The Commission, however, considers it essential to monitor the on-going implementation of the decisions taken since a great deal still needs to be done. The Commission has already indicated to the Chief Minister that a follow-up mission will be made on behalf of the Commission at an appropriate time and it appreciates the response of the Chief Minister that such a visit will be welcome and that every effort will be made to restore complete normalcy expeditiously.
(xiv) In the light of the above, the Commission is duty bound to continue to follow developments in Gujarat consequent to the tragic incidents that occurred in Godhra and elsewhere. Under its Statute, it is required to monitor the compliance of the State with the rule of law and its human rights obligations. This will be a continuing duty of the Commission which must be fulfilled, Parliament having established the Commission with the objective of ensuring the “better protection” of human rights in the country, expecting thereby that the efforts of the Commission would be additional to those of existing agencies and institutions. In this task, the Commission will continue to count on receiving the cooperation of the Government of Gujarat, a cooperation of which the Chief Minister has stated that it can be assured.